Dangerous Ruling In Germany Makes Domain Registrar Liable For Copyright Infringement On Website It Registered

from the any-means-necessary dept

We already find the concept of "secondary liability" when it comes to copyright troubling enough. It's worrisome when a third party who had no direct involvement in the actual infringement can be blamed for it. Yet, in the legacy entertainment industry's insane infatuation with stopping all infringement, they keep going further up the chain, past secondary liability into tertiary or possibly even quaternary liability -- blaming those further and further removed from the actual infringement. That includes going after companies like ad providers and search engines -- but also, apparently, it includes going after registrars. We've seen some of this recently in various attempts to target registrars, but a ruling in Germany is hugely troubling, finding a registrar guilty because a site registered through that registrar was apparently used by someone to infringe.

Let's be clear just how far this is removed from the actual infringement. The infringement, if it actually existed, was between two or more individuals, who shared a torrent of Robin Thicke's album Blurred Lines. Once removed from that was the torrent site H33T, which did not actually engage in any infringement, but hosted the torrent (which, again, is not the actually infringing file). Another layer removed from that would be H33T's web host. And then we go one more layer up, and we finally get to Key-Systems, the registrar, which was ordered by a court to stop the infringement all those many layers down. And, of course, as the registrar, its only option was to yank the DNS entry, which it did, shutting down the entire site, even if everything else on the site was legal.

It's no secret that Germany seems to be much more open to ridiculous secondary liability claims, leading to some bizarre and dangerous rulings that will stifle innovation. And this seems to fit right in with those in the past. Key-Systems' lawyer agreed, telling TorrentFreak that the ruling "made no legal sense" and had "dire consequences for the kind of services German registrars can provide."

Universal Music, which brought the lawsuit, defended the outcome with some bizarre logic in a comment to TorrentFreak as well. First, a lawyer for Universal claimed that since H33T was a domain reseller, that tied the two companies together, but that makes no sense, especially since the issue of the torrent is totally unrelated to reselling domain names. Just because the companies have a relationship, doesn't make one liable for the others' totally unrelated actions. But then there's this absolutely insane logic:
Bruess says at this point it became “quite clear” that as “the only party involved who could stop the infringement”, Key-Systems needed to take action. That involved Key-Systems effectively disabling the whole domain, but Bruess says that was not his company’s request. They had only one requirement – to disable access to a single URL.

“In essence, Rasch Legal had not asked Key-Systems to close down h33t.com, but to stop one single torrent from being communicated to the public through h33t and h33t’s tracker,” he explains.
But, let's take that ridiculous logic one step further. Say, for example, that the registrar was unable to stop this particular torrent from being shared? Do we move one step up the ladder? They could, say, go to VeriSign, and demand they take down the entire .com database, right? Because that would be "the only party who could stop the infringement" at that point, right? And, even though they just wanted that single torrent taken down, if the only way VeriSign can do it is to nuke most of the internet, well, that's perfectly reasonable, right?

Filed Under: blurred lines, copyright, germany, secondary liability, torrent

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  1. icon
    beltorak (profile), 14 Feb 2014 @ 9:24am

    The plaintiff would like to consolidate the following defendants in this claim:

    - happyp1r4te for copying the work
    - Alienware for making the computer allowing the work to be copied
    - Intel for making the CPU that changed the work into a readily piratable form
    - Hitachi for making the monitor displaying the progress of the infringment
    - Logitech for making the keyboard permitting the infringer to hack infringing codes
    - Realtek Semiconductor for enabling the computer to transmit the infringing work
    - Belkin for making the internet cable carrying the infringing content
    - LG for making the powerstrip keeping the computer on while it was infringing
    - Linksys for making the router enabling the infringment to be transmitted to the internet
    - Comcast for selling infringment-enabling services ("internet access")
    - AT&T for the internet routers that carried the infringement
    - GoDaddy for providing the domain name on which the infringement was hosted
    - Verisign for allowing GoDaddy to continue to sell services to infringers
    - IANA for not revoking Verisign's right to use ".com" under which the infringement was hosted
    - Adobe for selling "dreamweaver" without proper safe guards in place to prevent "hot links" to the infringing works despite this simple suggested modification to their software!
    - Google (of course) for directing users to infringing works
    - The US Intelligence Agencies (NSA, FBI, CIA, DHS, ICE, CBP, and the NYPD) for not stepping in to stop the infringement
    - The Poetry Foundation for promulgating the works of one "William Shakespeare" (presumed deceased) which allowed the infringer to clearly articulate the infringement
    - God for imbuing "happyp1r4te" with the spark of life after knowing infringment would be taking place

    I hereby attest in good faith that we have named all responsible parties, however we reserve the right to amend this list as new details come to light.

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